Free Speech On The Net At The Supreme Court

Some surprisingly wired Justices hear an antiporn case that would restrict
free speech in cyberspace

By Joshua Quittner

(TIME, March 31) -- Deputy Solicitor General Seth P. Waxman went before the U.S.
Supreme Court last week to praise the Communications Decency
Act, not to bury it. That was his first mistake.

The CDA, as it is known by everyone who has followed its
tortured history, is the controversial antiporn bill passed by
Congress and signed into law last year by President Bill
Clinton. The act makes it a federal crime to put online, where
children might see it, not just the obscene or the pornographic
but any "indecent" word or image--a prohibition so vague that it
might criminalize an AIDS-awareness lesson. Proponents argue
that without such strictures, any child cruising the Net would
have, as Waxman told the court, "a free pass into the equivalent
of every adult bookstore and video store in the country."

That may have been his second mistake. The government's lead
counsel got exactly 201 words into his argument when the first
Justice cut in, asking for a citation. Waxman recovered,
mustered an additional 111 words about how it's technologically
feasible for Websites to screen users by age, when Justice
Sandra Day O'Connor interrupted. "Does that technology require
use of something called CGI?" she asked, referring to a complex
protocol for changing what users see on a Web page. "It does,"
agreed Waxman, thereby opening the door to a line of argument in
which he found himself suggesting--apparently in all
seriousness--that U.S. citizens might have to purchase a
government-issued, Maxwell Smart-like "cone of silence" before
making a speech in a public park.

And so it went for an extraordinary 70 minutes that showed not
just how wired this bench has become but also how important a
test of constitutional principles it believes this case to be.
The CDA, once feared and reviled by civil libertarians, is now
seen as so flawed ("dead meat" is how Wired News described it
last week) that its opponents are eagerly looking forward to a
ruling. A clear judgment against it by the Supreme Court could
end up extending First Amendment protection for all media into
the 21st century. It could also help douse anti-Net brush fires
that have sprung up at state and county levels in the months
since the bill was signed.

That isn't to say that Bruce Ennis, lead counsel for a coalition
of 20 plaintiffs that included the American Civil Liberties
Union and the American Library Association, didn't suffer his
share of interruptions. The Justices were particularly
unimpressed by his argument that the law was worthless because
it could not stop naughty bits from flowing to the U.S. from
overseas. But at least Ennis managed to do something Waxman
never did: forcibly state his case. "For 40 years," he said,
"this court has repeatedly and unanimously ruled that government
cannot constitutionally reduce the adult population to reading
and viewing only what is appropriate for children. That is what
this law does." The court did not argue with that.

Clearly, the judges had done their homework. The
most-wired-Justice award went to Antonin Scalia, who pointed out
that technology is changing so rapidly that what's
unconstitutional today might be constitutional next week. Said
Scalia: "I throw away my computer every five years." At another
point, when Ennis was arguing that parents should chaperone
their kids online, Scalia cracked, "If I had to be present
whenever my 16-year-old is on the Internet, I would know less
about this case than I know today."

Of course, whether it's good or bad for the A.C.L.U. that some
Justices know a Website from a legal cite probably won't be
known for months. The Justices will rule sometime before the
court's summer recess--usually by July 4. Meantime, in the
absence of any clear constitutional law in cyberspace, at least
17 states have passed or are considering their own legislation
to regulate the Net. New York enacted a law last year that
resembles the CDA. In Virginia it's now illegal for state
employees--including state-college professors--to access
"sexually explicit" materials online. That law might prevent
English professors from running an online discussion of Lady
Chatterley's Lover. In Georgia it's a crime for people to
communicate anonymously over the Net, which could come as a
surprise to 8 million America Online users, most of whom use
pseudonyms.

And here's more bad news for Georgians: if the Supreme Court
finds the CDA is indeed unconstitutional, the ruling would not
automatically void those state laws, says Ann Beeson, a national
staff attorney for the A.C.L.U. It would, however, make it
easier for the courts to strike down local statutes.
"Unfortunately," says Beeson, "state legislatures pass
unconstitutional laws all the time, and you still have to go to
court to fight them."

Of course, the U.S. Congress also has a history of passing
unconstitutional laws, and several conservative legislators have
already promised that if the Supreme Court rules against this
law, they will try again with a more carefully crafted "Son of
CDA." "Some way, somehow," says Republican Senator Charles
Grassley of Iowa, a fierce supporter of the CDA, "we will have
to find a constitutional way of protecting kids from porn."